BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
proportionality tests: the principle that only so much of the intercept
material can be disclosed as the recipient needs is the antithesis of those
tests. The use of this disclosing power is not subject to an objective
statutory threshold, but merely guided, and possibly misguided, by the
purpose pursued. Thus, purely opportunistic considerations prevailed over
the assessment of the necessity and proportionality of the additional
interference with the intercept subject’s rights constituted by the disclosure
of the intercepted material to other parties. In simple words, the individual’s
communication is treated as a possession of the State, a commodity that the
State can share with other parties at its discretion in order “to see if the
haystack contains a needle”162.
C. Bulk interception of related communications data
55. Lastly, section 16(2) of RIPA did not apply to bulk interception of
related communications data, which meant that any analyst could use a
strong selector referable to an individual known to be in the British Islands
without any prior certification by the Secretary of State and, worse still, the
intercepted data could be stored for “several months”, if and as long as
necessary to discover “unknown unknows”163. In practical terms, the
interception and treatment of related communications data was limited only
by the storage capacity of the intercepting services. In fact, RIPA does not
really enshrine a foreign intelligence gathering power, because
technological development has transformed it into a domestic surveillance
power, and that is why the Government now pretend that the British Islands
safeguard in section 16 of RIPA is not “necessary” for Convention
compatibility164.
56. The Government’s feasibility argument165 does not convince me
either. It is perfectly feasible for a judge to assess, in due course, the
necessity and the proportionality of a request for authorisation to target the
individual’s related communications data in every case, without any serious
risk of undermining its use166. If this authorisation process can be
Paragraph 7.3 of the IC Code (see paragraphs 96 and 390 of this judgment).
Oral submissions of the respondent Government during the Grand Chamber hearing on
10 July 2019.
163 Paragraphs 422-423 of this judgment.
164 See the oral submissions of the respondent Government during the Grand Chamber
hearing on 10 July 2019. This way the intercepting authority could get hold, via a bulk
warrant, of content that they ought to have obtained via an individual and targeted warrant
under section 8, and could therefore circumvent this Court’s judgment in Kennedy v. the
United Kingdom, cited above.
165 Paragraph 420 of this judgment.
166 My judgment is based on my own experience as a criminal-court judge in highly
complex criminal cases, where the police often requested the interception of vast amounts
of related communications data.
161
162
198